Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Tuesday, November 27, 2007

People v. Scott (Cal. Ct. App. - Nov. 27, 2007)

There may -- perhaps -- be good test cases in which you might argue that a state prohibition against incest violates the Due Process Clause. Take, for example, a hypothetical 54-year old man who sleeps with his infertile 56-year old sister, whom he has never seen until two years ago (since they were both adopted at birth), after a lengthy relationship that first began when neither knew that the two were related. That's a good case. I can see at least an argument there.

But a drunk father climbing into bed with his just-turned-18-year-old daughter who puts his finger inside her and then has sex with her as she's "quietly crying and scared" of him? That ain't gonna fly. I don't care how a legal theory might be articulated in a good test case. You ain't it. So you're going to lose.

As indeed you do. As Justice King affirms both your conviction and sentence of six years in the pokey.